Client Claims Attorney Fraudulently Applied Reduced Medical Malpractice Retainer Agreement To Each Settling Defendant To Illegally Increase Fee By $194,000

On June 26, 2019, an appellate court agreed that once a medical malpractice case was settled and attorneys fees awarded, the only forum to challenge the fee award is before the same court and not in a subsequent legal malpractice action. The medical malpractice claim was settled for $3,700,000 received from three physicians and a hospital. Each physician/hospital contributed between $500,000 up to $1,300,000, totaling an aggregate settlement of the action (under one index number) in the amount of $3,700,000.

The settlement and legal fees of $864,552 were approved by Justice Baisley of the Suffolk County Supreme Court applying the reduced medical malpractice sliding scale retainer separately to each settling physician/hospital. Usually, the attorney's fees are calculated on the aggregate amount of the settlement at a greatly reduced cost to the client. The Justice who approved the fee application at settlement, accepted plaintiff's counsel contention that Judiciary Law Section 474-a (which applies to an “action” for medical malpractice) did not require the application of the retainer to the aggregate settlement which would have resulted in attorneys fees of only $516,226.

The plaintiff argued that the attorney deceived her by using the Court's approval of the $864,552 legal fee to make her think that his taking a fee of only $710,000 was a magnanimous gift to her. Instead, she claimed the attorney engaged in deceptive acts prohibited by Judiciary Law Section 487 in charging her $194,000 more than the maximum fee allowed of $516,226. The appellate court held that the only remedy was for the client to file a motion under the caption of the medical malpractice action to vacate the judgment awarding the legal fees which, in order to succeed, will require proof of fraudulent conduct. Urias v Daniel P. Buttafuoco & Assoc., PLLC, 2019 WL 2607327

Ronald C. Burke, Esq

Trial Attorney with 30+ Years of Experience Attorney Ronald C. Burke, Esq. has more than 30 years of experience and has focused his career on representing clients in cases involving personal injury, medical malpractice and legal malpractice. He is a seasoned trial lawyer and has won many seven-figure settlements and verdicts for his clients over the years, including many case victories listed among the largest in the history of the New York State. He has been featured in the news and is a regular lecturer for the New York County Lawyers Association, as well as having lectured before the New York State Bar Association. Ron is also an attorney with Kelner & Kelner, a New York personal injury law firm. Awards and Accolades Mr. Burke's awards and accolades are many. Among them, he has been included in New York Super Lawyers® each year since 2010, and he has received the highest-possible AV® Rating from Martindale-Hubbell®. Verdict Search, a part of the New York Law Journal, frequently recognizes his notable successes after winning some of the highest settlements and verdicts in past years. He was also featured in their list of the "Top New York Verdicts " and "Top New York Settlements." He is a member of the New York State Bar Association and is licensed to practice law in the U.S. District Court for the Southern and Eastern Districts of New York, as well as before the United States Supreme Court. When Attorney Burke is not handling legal malpractice cases, he is highly involved in the local community. He was a member of the Village of Rockville Centre Volunteer Fire Department, has served on the local school board and as Chairman of the local Zoning Board. Learn more about Attorney Burke and how he can skillfully handle your malpractice case by contacting the Law Offices of Ronald C. Burke, Esq. right away to schedule your complimentary case evaluation. Our firm is here to help! Contact a New York Legal Malpractice Attorney Our firm provides each client's case with thorough preparation and aggressive representation, ensuring that you win the best possible results for your case whether it is settled or goes to trial. As a seasoned trial lawyer, Mr. Burke can provide the strong and relentless representation you need to establish negligence in a legal malpractice case and to recover any damages you may have suffered. Our firm can recover compensation for pre-trial and trial malpractice, violations of fee arrangements, loss of income, pain and suffering, and much more. Contact us today!


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